Stewart v. Daniel et al

Filing 32

ORDER - Plaintiff's motion for appointment of counsel (ECF No. 31 ) is DENIED. To the extent he requests that these proceedings be stayed while the appointment of counsel is confirmed, that request is DENIED AS MOOT. Response t o ECF No. 27 Motion for Summary Judgment due by 5/3/2017. The Attorney General's Office shall take steps to ensure Plaintiff is given a reasonable amount of time to review Exhibit N so that he may respond to the motion for summary judgment. Signed by Magistrate Judge William G. Cobb on 4/11/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEMETRIOUS STEWART,
Plaintiff,

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Case No. 3:16-cv-00046-MMD-WGC
ORDER

v.
E.K. DANIEL, et. al.,
Defendants.

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Before the court is Plaintiff’s Motion to Appoint Pro Bono Counsel to Protect the Right
of Meaningful Access to the Courts; and Motion to Stay Proceedings Pending Confirmation of
Counsel. (ECF No. 31.)
Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),
proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.’s Am. Compl., ECF No.6.)
The events giving rise to this action took place while Plaintiff was housed at Lovelock
Correctional Center (LCC). (Id.) The court screened the amended complaint and allowed
Plaintiff to proceed with a single Eighth Amendment claim of deliberate indifference to a serious
medical need against defendants Terry Lindburg, Susan Baros, William Sandie (incorrectly
named as Sandie Williams), Glenn Chambers and E.K. McDaniel (incorrectly named in the
caption as E.K. Daniel). (ECF No. 5.) Specifically, Plaintiff alleges that he requires special shoes
that meet his medical needs, and while he was previously permitted to have these shoes, when
his family ordered the shoes for him from an outside vendor he was not permitted to have them.
(ECF No. 6 at 3-4.)
He previously filed a motion for preliminary injunction, which the undersigned
recommended be denied, and that report and recommendation is currently pending before
District Judge Du. (ECF No. 21.)

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Plaintiff has now filed a motion for appointment of counsel. Plaintiff states that he cannot
afford counsel; the substantive and procedural requirements are difficult and incomprehensible
to him; he cannot investigate, take depositions or otherwise proceed with discovery due to his
incarceration; he has limited access to legal materials; he cannot investigate crucial facts; he
does not have the legal knowledge and ability to prosecute this lawsuit; the appointment of
counsel would aid the court; he is unable to visit the prison law library and browse through
books and ask questions; he has to use a paging system to make requests by subject matter; the
law library assistants cannot give legal advice to the inmates; and he has a right to access the
courts.
In addition, he states that counsel would be able to obtain evidence that would support his
opposition to Defendants’ pending motion for summary judgment. Specifically, he states that
counsel could obtain evidence that NDOC receives “kickbacks” from the purchase of
“securepaks;” that the vendor from which he purchased his shoes is a reputable vendor shipping
goods to prisoner’s nationwide.
It is unclear whether Plaintiff seeks appointment of counsel under the District of
Nevada’s pro bono program or pursuant to 28 U.S.C. § 1915(e)(1).
First, under the District of Nevada’s Pro Bono Program, a litigant may not request
referral to the program; instead, the district or magistrate judge to whom the action is assigned
may issue an order referring the action to the Pro Bono Program. General Order 2016-02. The
decision to make such a referral is within the discretion of the judge and is based on various
factors including the potential merit of the claims; the nature and complexity of the action
including the need for factual investigation, the need for experts, and overall needs for
discovery; presence of conflicting testimony; the capability of the pro se party to present the
case; the degree the interests of justice would be served by appointing counsel. Id.
Here, the court does not find that the circumstances warrant referral to the Pro Bono
Program. Initially, as to the nature and complexity of the action, Plaintiff presents a single
Eighth Amendment claim based on the allegation that he was precluded from having medically
necessary shoes. The claim is not unduly complex, and fairly straightforward compared to other
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Eighth Amendment medical care claims that come before this court. There does not appear to be
a need for experts, and any factual investigation can be sufficiently completed through written
discovery (i.e., interrogatories and requests for the production of documents). The court observes
that Plaintiff was able to adequately articulate his Eighth Amendment claim and arguments in
connection with his motion for preliminary injunction, suggesting he would be similarly capable
in responding to the motion for summary judgment. Therefore, it does not appear that the
interests of justice would be served by referring this matter to the Pro Bono Program.
Second, “a person [generally] has no right to counsel in civil actions.” Palmer v. Valdez,
560 F.3d 965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
1981)). 28 U.S.C. § 1915(e)(1), however, does allow the court to “request an attorney to
represent any person unable to afford counsel.” That being said, the appointment of counsel in a
civil case is within the court’s discretion and is only allowed in “exceptional cases.” See Palmer,
560 F.3d at 970 (citations omitted); see also Harrington v. Scribner, 785 F.3d 1299, 1309 (9th
Cir. 2015). In “determining whether ‘exceptional circumstances’ exist, a court must consider ‘the
likelihood of success on the merits as well as the ability of the petitioner to articulate his claims
pro se in light of the complexity of the legal issues involved.’” Palmer, 560 F.3d at 970 (quoting
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v. Taylor, 739 F.3d 1213,
1218 (9th Cir. 2015). “Neither of these considerations is dispositive and instead must be viewed
together.” Id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Plaintiff’s current motion does not address whether he has a likelihood of success on the
merits, but the court notes that it found in reviewing his motion for preliminary injunction
(which requires a showing of likelihood of success on the merits) that Plaintiff had not
demonstrated a likelihood of success on the merits of his claim. (See ECF No. 21 at 3-7.) In
addition, as stated above, Plaintiff has shown an ability to articulate his claim and the legal
issues involved are not complex.
Plaintiff references perceived deficiencies in the law library system at LCC, and his right
to access the courts. Inmates do have a constitutional right of access to the courts. See Bounds v.
Smith, 430 U.S. 817, 828 (1977), limited in part on other grounds in Lewis v. Casey, 518 U.S.
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343, 354 (1996). An inmate allegation a violation of their right of access to the courts must show
“actual injury,” a requirement that “derives ultimately from the doctrine of standing, a
constitutional principle that prevents courts of law from undertaking tasks assigned to the
political branches.” Lewis v. Casey, 518 U.S. 343, 349 (1996) (citations omitted). “It is for courts
to remedy past or imminent official interference with individual inmates’ presentation of claims
to the courts; it is for the political branches of the State and Federal Governments to manage
prisons in such fashion that official interference with the presentation of claims will not occur.”
Id. Lewis held that Bounds did not establish a right to a law library or legal assistance, but a right
of “access to the courts.” Id. at 350.

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“[A]n inmate cannot establish relevant actual injury by simply establishing that his
prison’s law library or legal assistance program is subpar in some theoretical sense.” Id. at 351.
Instead, the inmate must “demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.” Id. The Supreme Court gave the
following example: “He might show, for example, that a complaint he prepared was dismissed
for failure to satisfy some technical requirement which, because of deficiencies in the prison’s
legal assistance facilities, he could not have known.” Id. Another example is when an inmate
“suffer[s] arguably actionable harm that he wished to bring before the courts, but was so stymied
by inadequacies of the law library that he was unable even to file a complaint.” Id. The right of
access to the courts does not guarantee an inmate the right to “litigate effectively once in court.”
Id. at 354 (emphasis original). Nor does it “guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing

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Plaintiff presents deficiencies he perceives with respect to LCC’s law library, but has not
demonstrated that this hindered his efforts to pursue his legal claim. Plaintiff is reminded that the
right of access to the courts assures Plaintiff is able to bring his claim to the courts, but does not
guarantee him a right to litigate it effectively once there. As such, his concerns about the law
library at LCC do not give rise to an access to the courts claim, and, insofar as this order is
concerned, do not support the appointment of counsel.
///
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Therefore, Plaintiff has not presented the exceptional case which warrants the
appointment of counsel.
Accordingly, Plaintiff’s motion requesting the appointment of counsel (ECF No. 31) is
DENIED. To the extent he requests that these proceedings be stayed while the appointment of
counsel is confirmed, that request is DENIED AS MOOT. The court will grant Plaintiff an
extension up to and including May 3, 2017 to respond to Defendants’ motion for summary
judgment. Defendants’ shall file their reply brief in accordance with the Local Rules.
Finally, Plaintiff states that he did not get a copy of Exhibit N submitted in support of
Defendants’ motion. Exhibit N was filed under seal and consists of Plaintiff’s medical records.
While prison regulations preclude Plaintiff from possessing the medical records in his cell, he
may kite the warden’s office to review the records and take notes so that he may respond to
Defendants’ motion. The Attorney General’s Office shall take steps to ensure Plaintiff is given a
reasonable amount of time to review Exhibit N so that he may respond to the motion for
summary judgment.
IT IS SO ORDERED.
DATED: April 11, 2017.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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